issue #24, week 46. 15 November 2007
Prepared by TDM and Aloysius Gng (CEPMLP/Dundee)

TDM News Digest

provides a condensed overview of recent events of interest to the international arbitration community.

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Recent issues:

NEWS

Ghana: Country Has Revolutionalized Her Investment Laws

November 14, http://allafrica.com/stories/200711140740.html

The government of Ghana has put in place measures in creating an enabling business environment in the country with economic growth of the country accelerated steadily from 3.7% in 2000 t0 6.2% in 2006. Some of these policies include the Transformation of Sectors like the Trade Policy, Public Sector Reform Investment, Business Registration and Licensing, the Financial Sector, Land Administration, Judicial Services and Agriculture, Energy communications, Transportation Land and Forestry.

…

He said commercial courts have been established under the judicial service. Alternative Disputes Resolution Mechanisms are being implemented as part of the court process. 75-90% of all cases have so far been disposed off through mediation. Mr. Agyeman Manu noted that through automation the court proceedings are ready for all parties within 24-72 hours.

…

Renationalisation of US justice

November 13, by Patti Waldmeir, http://www.ft.com/cms/s/0/37c1d6f6-91fb-11dc-8981-0000779fd2ac.html

Over the past 20 years, America has created a superior system of second-hand justice: arbitration, mediation, and other increasingly creative forms of privatised justice have replaced the elusive American trial. In the best of all possible worlds, disputes would be settled by sage judges and conscientious juries. But in a world where only 2 per cent of lawsuits ever get to trial, second-hand justice from an arbitrator is better than none at all. Lawsuits these days are increasingly DIY; courts hardly get a look in.

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Is Arbitration the New Litigation?

http://blogs.wsj.com/law/2007/11/14/is-arbitration-the-new-litigation/

The FT's legal columnist Patti Waldmeir thinks arbitration is a good thing. "Over the past 20 years, America has created a superior system of second-hand justice: arbitration, mediation, and other increasingly creative forms of privatised justice have replaced the elusive American trial," she writes. "But in a world where only 2 per cent of lawsuits ever get to trial, second-hand justice from an arbitrator is better than none at all."

…

Exxon Mobil Corp. v. Doe I, et al.

The Supreme Court asked the U.S. Solicitor General to provide the federal government's views on whether an immediate appeal may be filed if a federal judge refuses a federal government request to dismiss a case in U.S. courts against a foreign government. The case, Exxon Mobil Corp. v. Doe I, et al. (07-81), involves a claim by eleven villagers in Indonesia that Exxon Mobil and its Indonesian subsidiary used soldiers of the Indonesian military to guard an Exxon natural gas plant in Aceh province, resulting in acts of murder, torture, and other atrocities by the soldiers. Justice Samuel A. Alito, Jr., took no part in the order seeking the government's reaction to the appeal; he apparently owns a block of Exxon Mobil stock.

To access the opinion below of the D.C. Circuit, petition for certiorari, brief in opposition, and petitioner's reply visit the SCOTUSblog at http://www.scotusblog.com/wp/uncategorized/court-takes-no-action-on-gun-case/ or International Law Reporter here http://ilreports.blogspot.com/2007/11/update-exxon-mobil-corp-v-john-doe-i.html

Zimbabwe: 13 Farmers Demand 1,5m Euros From Govt

November 13, http://allafrica.com/stories/200711140060.html

The Government has strongly opposed attempts by a group of 13 white farmers to reverse Zimbabwe's land reform programme through scare-tactic lawsuits on the international stage, it emerged yesterday.

Staking a claim to Dutch citizenship, the 13 farmers, who lost farms during the land redistribution programme, have taken Zimbabwe to the International Centre for Settlement of Investment Disputes and are demanding 1,5 million euros for each farm lost as compensation.

…

Ukrainian operators rebel against Russian owners

November 14, http://eng.cnews.ru/news/top/indexEn.shtml?2007/11/14/274827

An unprecedented event has occured on the Ukrainian telecommunications market: the local company Storm through which the Holding Altimo owns 43.5% in the mobile operator Kievstar has blocked its shareholders' attempt to implement New York Arbitration verdict. However, experts believe, that is Altimo judicial trick.

…

Pertamina fails to overturn arbitration award

The recent decision of the Hong Kong Court of Appeal (CA) upholding enforcement of the award in favour of Karaha Bodas is available here: http://legalref.judiciary.gov.hk/lrs/common/search/search_result_detail_frame.jsp?
DIS=58741&QS=%28%7BCACV121%2F2003%7D%7C%7BCACV000121%2F2003%7D+%25caseno%29&TP=JU

(If the link above fails, just go to http://legalref.judiciary.gov.hk/ and enter CACV 121/2003 in the Quick Search for Case number searchbox)

For those interested in this subject a draft case note reporting on that appellate decision and a copy of the original 2003 trial court decision are available from Robert Morgan at

Indonesia: Investors still waiting

November 13, http://www.thejakartapost.com/detaileditorial.asp?fileid=20071113.E01&irec=0

The Investment Coordinating Board (BKPM) has reported steady and sharp increases in new foreign investment approvals amid persistently negative perceptions among foreign businesspeople and analysts of Indonesia's investment climate.

Most foreign investors and business consultants still consider the country one of the least attractive places in Southeast Asia for direct investment due to numerous impediments to business operations. They do recognize the BKPM figures on licensed investment but point out that investment approval is one thing, while investment realization something else entirely.

Many foreign investors apparently wanted to obtain licenses before the particular business fields were closed to new investors. But the blunt fact is that all the wonderful data on investment approvals mean little for the economy and job creation if the investment commitment is not realized in fixed assets.

…

Bahrain: Justice Minister Stresses Need for Alternative Commercial Arbitration Methods

November 11, http://english.bna.bh/?ID=64006

Minister of Justice and Islamic Affairs Shaikh Khalid Bin Ali Al Khalifa stressed the need to push for the introduction of alternative methods to settle commercial and financial disputes, which, he noted, would remarkably contribute in attracting foreign investments.

In a statement, marking the international commercial arbitration conference, due to kick-start in Bahrain tomorrow, Shaikh Khalid said the kingdoms hosting of the event is indicative of its internationally-acknowledged economic status and is concomitant with its ambition to become a commercial arbitration centre according to international standards and requirements. Shaikh Khalid asserted the ministrys support to all efforts seeking to find a legislative framework that can better keep pace with Bahrains economic development and effectively benefit the national economy.

…

Bahrain: Arbitration in the spotlight

November 11, http://www.gulf-daily-news.com/Story.asp?Article=199588&Sn=BUSI&IssueID=30236

Bahrain has the potential to become a commercial arbitration hub in the region based on its background in the field, an international commercial law expert said yesterday. International Chamber of Commerce Institute of World Business Law chairman Serge Lazareff said at the opening of the Arbitration Industry Conference and Workshop yesterday that Bahrain has an arbitration system since the end of the 19th century.

The three-day event is being held at the Diplomat Radisson SAS Hotel, Residence and Spa under the theme International Commercial Arbitration: A Stimulant for Economic and Financial Growth and A Support to Islamic Banks.

…

Argentina Central Puerto Seeks $12 Million From GE In Arbitration

November 09, http://money.cnn.com/news/newsfeeds/articles/djf500/200711091401DOWJONESDJONLINE000755_FORTUNE5.htm

Argentine power generator Central Puerto SA ( CEPU2.BA) is seeking a $12 million award from the local unit of General Electric Co. (GE) at the Buenos Aires Stock Exchange's arbitration tribunal, the power company reported Friday. The claim, which also seeks compensation for interest and legal costs, relates to the plant going off-line "due to failures that occurred in 2003 and 2005," Central Puerto said in a filing with the Buenos Aires Stock Exchange. The generator said it opened the arbitration case on Nov. 7.

…

In July, amid cold weather-related gas restrictions, Central Puerto opened an arbitration case at the International Chamber of Commerce against Spanish oil company Repsol YPF SA's (REP) Argentine unit YPF SA (YPF), alleging that the oil company failed to fully comply with a 2000 natural gas supply contract.

Russia investment law postponed till 08

November 8, http://uk.reuters.com/article/oilRpt/idUKL0858143520071108

Russia will postpone introduction of a law setting ground rules for foreign investment in 'strategic' industries until 2008, a top cabinet minister said on Thursday. "We will not make it this year although the document is nearly ready," Energy and Industry Minister Viktor Khristenko told a news conference, adding that necessary amendments to subsoil legislation were not yet ready.

Parliament asked the government to submit amendments to the existing subsoil law, which should define strategic natural resource deposits. The new investment law would then apply curbs to exploration of such deposits.

The head of the industry committee of the State Duma lower house of parliament, Martin Shakkum, told Reuters this week that the second reading of the draft law will be handed over to the next Duma when it convenes after an election on Dec. 2. The Ministries of Natural Resources, Industry and Energy, Economic Development and Trade and the Federal Security Service (FSB) have been involved in drafting the law.

…

PetroEcuador Asks to Revoke City Oriente Contract

November 8, http://www.bloomberg.com/apps/news?pid=20601086&sid=aJ5sKkc0BD7s&refer=news

PetroEcuador, the state-owned oil company, said it asked the energy ministry to rescind the contract of the last U.S. oil company operating in Ecuador, saying it has refused to comply with a windfall profit levy. City Oriente, owned by U.S.-based City Investing, owes the government $28 million for windfall oil profits, PetroEcuador president Carlos Pareja told reporters today in Quito. City Oriente produces 2,800 to 3,000 barrels a day in Ecuador, while the country as a whole pumps about 500,000.

The government and private oil companies split profits 50- 50 once the price of oil exceeds a threshold, under terms of a revenue-sharing law passed last year by the country's previous administration. Venezuela, Bolivia and Ecuador have redrawn contracts with oil companies to benefit from prices nearing $100 a barrel. "This company, despite our requests, hasn't complied with a single payment since April 2006,'' Pareja said. "There's nothing else for us to do other than to seek the rescinding of its contract.''

…

China & Macao sign pact to boost enforcement of arbitration

October 30, http://www.chinadaily.com.cn/china/2007-10/30/content_6217373.htm

The Chinese mainland and Macao Special Administrative Region (MSAR) signed a pact here Tuesday to make judgments by each other's arbitration authorities mutually legal and enforceable.

Huang Songyou, vice president of the Supreme People's Court, signed the arrangement on reciprocal recognition and enforcement of arbitration judgment with Forinda da Rosa Silva Chan, Secretary for Administration and Justice of MSAR.

…

This agreement, as explained by a justice of the Supreme People's Court, represents another step forward in China and Macao's judicial cooperation, see http://www.court.gov.cn/news/bulletin/release/200710310019.htm, source: http://chinabusinesslaw.blogspot.com/2007/11/china-and-macao-signs-arbitration.html

Brussels Court of Appeal Rejects Republic of Poland's Claim of Judge's Lack of Impartiality

http://www.eureko.net/press/eureko/archives/2007-10-31.asp

On the 29th of October 2007, the Brussels Court of Appeal has rejected the Republic of Poland's claim of the lack of impartiality of judge Schwebel. Judge Schwebel was appointed by Eureko for the International Arbitral Tribunal which decided in August 2005 that the Republic of Poland was in breach of the Bilateral Treaty on the encouragement and reciprocal protection of investments between the Kingdom of The Netherlands and the Republic of Poland.

The challenge claim suspended continuation of the second phase of the arbitration. Now that the Brussels Court of Appeal ruled that the challenge claim is unfounded, the second phase of the Arbitration will commence. In the second phase of the arbitration, the damages of Eureko's claim will be assessed by the Arbitral Tribunal.

Eureko is, naturally, pleased that the judgment of the Brussels Court exonerates judge Schwebel from all blame.

…

PODCASTS

New episode IDN podcast: Kevin Padian of the University of California at Berkley

http://www.cpradr.org/TrainingEvents/Podcasts/tabid/261/Default.aspx

International Dispute Negotiation (IDN) is presented by CPR as an example of the ways professionals from different countries and backgrounds approach dispute resolution. The podcast is intended to help listeners understand the risks of disputes and shed insight on optimal ways of accepting, mitigating, and managing those risks in the real world, whether through mediation, arbitration, or litigation that arises far from home. The host is Michael McIlwrath, Senior Counsel, Litigation for GE Infrastructure - Oil & Gas.

A new episode is available for download: DN 5 - Dinosaur Dispute Resolution with Kevin Padian of the University of California at Berkley

EVENTS

Frankfurt Investment Arbitration Moot Court
The Frankfurt Investment Arbitration Moot Court is the first international student competition focussing on investment protection. The students will present their arguments orally on 15 February 2008 before tribunals of arbitration and investment treaty specialists.
February 15 - 16 2008. Frankfurt am Main Chamber of Commerce and Industry, Germany
More information is available at www.investmentarbitrationmoot.com

Hersch Lauterpacht Memorial Lecture Pt3: The United Nations Secretariat and the Use of Force in a Unipolar World by Ralph Zacklin, Assistant Secretary-General for Legal Affairs, United Nations - January 24th 2008

http://www.lcil.cam.ac.uk/news/article.php?section=26&article=595

The Hersch Lauterpacht Lectures are given annually in Cambridge to commemorate the unique contribution to the development of international law of Sir Hersch Lauterpacht. The lectures are presented as a three-part series by a person of eminence in the field of international law. A revised and expanded version of the lectures is usually published in the Hersch Lauterpacht Lecture Series by Cambridge University Press.

This year's lectures will be given by Ralph Zacklin, Assistant Secretary-General for Legal Affairs, United Nations and will examine the legal issues that have arisen regarding the use of force in the Iraq-Kuwait conflict, Bosnia, Kosovo and the Iraq war from the point of view of the Legal Affairs Secretariat of the United Nations.

Report: ICDR Conference Covers International ADR Issues

http://www.adr.org/sp.asp?id=33343

Some of the world's leading international arbitration practitioners discussed a wide range of issues in the field during the International Centre for Dispute Resolution's (ICDR) recently held 5th Annual Fall International ADR Focus Program.

The conference, held at the Association of the Bar of the City of New York on Oct. 12, featured roundtable discussions on the use of discovery in international arbitration, state-investor disputes, and the state of ADR practice in Latin America and the European Union.

The ICDR's "focus area" concept allowed each panel to develop and discuss specific topics, drawing on the speakers' experiences and perspectives.

William K. Slate II, ICDR president, as well as American Arbitration Association (AAA) president and CEO, moderated the program's first panel discussion, which focused on the impact of U.S.-style discovery in international arbitration, including exchange of electronic materials.

…

Short overview of upcoming events

The above information is reproduced from the International Arbitration Planner by kind permission of Lovells (www.lovells.com and www.lovells.com/arbitration). More details on these and many other events can be found at www.arbitrationevents.com

MOVES / JOBS

Sophie Nappert joins 3 Verulam Buildings

3 Verulam Buildings is delighted to announce that Sophie Nappert is joining us to pursue her career as an international arbitrator. Sophie, a Canadian-qualified lawyer with both civil law and common law training and practice, was Head of Arbitration at a global law firm in London. Her practice is focused on energy, infrastructure and commercial disputes, and disputes involving State parties. Sophie was recently ranked in the Top 30 female arbitrators worldwide following a survey of the arbitration community, compiled in October 2007 by Global Arbitration Review.

"We are delighted that Sophie is coming to 3 Verulam Buildings to pursue her career as an arbitrator. She has excellent standing within the arbitration community, and her international background and outlook are an ideal fit with our existing group of arbitrators. In addition she will fit in well with the practice of members of chambers in international arbitration both as arbitrators and counsel", says Head of Chambers Christopher Symons QC.

"This is an exciting opportunity", says Sophie. "This allows me to pursue my career as an international arbitrator with other arbitrators and a group of independent practitioners with all the benefits that 3VB will bring me. There is a good synergy between the international arbitration practice at 3 Verulam Buildings and my own experience. I look forward to joining on 3 December."

Jingzhou Tao Joins Jones Day Beijing Office

http://www.jonesday.com/news/news_detail.aspx?newsid=S1246

Law firm Jones Day today announced that Jingzhou Tao will join the Firm's Beijing Office as a partner. He comes to Jones Day from DLA Piper where he was the former managing partner in Beijing. Mr. Tao's arrival brings the total number of fee earners in Jones Day's Beijing office to 45.

Mr. Tao's background is extraordinary,- said Stephen J. Brogan, Managing Partner of Jones Day. His expertise in China matters and admission to practice law in France will further enhance Jones Day's ability to serve clients around the world as One Firm Worldwide. He will be a terrific addition.

Recognized as an expert in international trade, arbitration, and corporate work, Mr. Tao has advised on China-related matters since 1985, and has maintained an active practice in China for more than fifteen years. He has advised numerous clients on international law matters, particularly on legal, financial, tax, arbitration, and commercial aspects of trade and investment.